Wilson & 86 others (Suing on behalf of the residents of Chepchoina Phase III in Trans-Nzoia County) v Attorney General & 4 others [2024] KEELC 4104 (KLR)

Wilson & 86 others (Suing on behalf of the residents of Chepchoina Phase III in Trans-Nzoia County) v Attorney General & 4 others (Environment & Land Case E014 of 2024) [2024] KEELC 4104 (KLR) (7 May 2024) (Ruling)

Neutral citation: [2024] KEELC 4104 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case E014 of 2024

FO Nyagaka, J

May 7, 2024

Between

Loshakep Chumel Wilson

1st Plaintiff

Remeile Lowonotum

2nd Plaintiff

Nelson Tiamale Lisoreng

3rd Plaintiff

Domongole Lomwai

4th Plaintiff

Loice Cheponyagat Chelalywa

5th Plaintiff

Chepocherwow Lomonyang

6th Plaintiff

Isaiah Ruto Nguriatudo

7th Plaintiff

Cheposimet Loyanalee

8th Plaintiff

Nicholas Lotunale

9th Plaintiff

Salome Chemokil

10th Plaintiff

Chepayos Lonyangata

11th Plaintiff

Chepsekeu Lokul

12th Plaintiff

Loitangura Yaranyang

13th Plaintiff

David Lotuliatum

14th Plaintiff

Loliwale Ngorialem Joseph

15th Plaintiff

Losiangura Lukipak

16th Plaintiff

Augustino Aboth Lokoyer

17th Plaintiff

Chepote Riongobosi

18th Plaintiff

Simon Kipyego Lowanatum

19th Plaintiff

Benjamin Kamunai

20th Plaintiff

Amina Chemuso Lyson

21st Plaintiff

Aporokoi Patarikamar

22nd Plaintiff

Chemkan Longirokwang

23rd Plaintiff

Chepochepit Wapale Poghon

24th Plaintiff

Chepochepkai Lonyakou

25th Plaintiff

Cheplamin Paulina Loputakong

26th Plaintiff

Silas Wapes

27th Plaintiff

Hezron Mosop

28th Plaintiff

Jackson Lokere Natangole

29th Plaintiff

Jackson Longuranyang Edom

30th Plaintiff

Isaya Lokedi Kirwa

31st Plaintiff

Chepokaltilit James

32nd Plaintiff

Chepnongor Tundunye

33rd Plaintiff

Eliza Lokuruk

34th Plaintiff

Cheptoyo Nakoribok

35th Plaintiff

Chemutai Tolim

36th Plaintiff

Tuliangiro Lokol

37th Plaintiff

Sharon Chenangat Powon

38th Plaintiff

Loripo Simon Lokuruk

39th Plaintiff

Regina Apeta

40th Plaintiff

Puomol Tudoo Benson

41st Plaintiff

Daniel Tolimlemkou

42nd Plaintiff

Cheposaniak Apenyimoi

43rd Plaintiff

Peter Pkopus Mudang

44th Plaintiff

Cheposongoro Lodiongole

45th Plaintiff

Johnson Lokitamugh

46th Plaintiff

Longoriasiwa Sokol

47th Plaintiff

Nancy Chepengat Chelele

48th Plaintiff

Kapelo Kaspan Sammy

49th Plaintiff

Tuliangiro Lokodopurat

50th Plaintiff

Piraa Merinyang

51st Plaintiff

Daniel Pkite Adupa

52nd Plaintiff

Cheposetio Tabaki

53rd Plaintiff

Emmanuel Poghisho Kariwo

54th Plaintiff

Cheposaghich Yarapus

55th Plaintiff

Losianger Ngiruiye

56th Plaintiff

Selina Chenangat Lokongotono

57th Plaintiff

Chepotunyany Linganyang

58th Plaintiff

Cheposera Lokeno

59th Plaintiff

Setieng Apuot Idakong

60th Plaintiff

Simatia Kales Waija

61st Plaintiff

Karenge Lotuliatum

62nd Plaintiff

Loripo Simon Lokoruk

63rd Plaintiff

Apusikou Ngorokoo

64th Plaintiff

Pius Mnangat Daudi

65th Plaintiff

Chepocherwow Longusu Loshakong

66th Plaintiff

Chepotuturwa Kasotot

67th Plaintiff

John Ngurakapel Lomoru

68th Plaintiff

Anthony Pkiech

69th Plaintiff

Alexander Pchuma Lokorora

70th Plaintiff

Chemkam Cheptiyos Lomerilima

71st Plaintiff

Plimo Tinjaa Lodenya

72nd Plaintiff

Monica Chepokenyekia Losekur

73rd Plaintiff

Merpus Kospei Limaluk

74th Plaintiff

Selina Chemitiny Losemuk

75th Plaintiff

Kedimuk Tuper

76th Plaintiff

Cheponyorio Merpus

77th Plaintiff

Wilson Merinyang

78th Plaintiff

Tomengar Samwel Loktari

79th Plaintiff

Thomas Ngurianyang Munyuny

80th Plaintiff

Zakayo Leken Dangaluka

81st Plaintiff

Stephen Lokudokori

82nd Plaintiff

Robert Pkiach Loswa

83rd Plaintiff

Ritangoria Domoreng Kimarmar

84th Plaintiff

Reuben Poighisho Psilot

85th Plaintiff

Pkomor Lotinyang

86th Plaintiff

Real Chepleke Benson

87th Plaintiff

Suing on behalf of the residents of Chepchoina Phase III in Trans-Nzoia County

and

The Attorney General

1st Defendant

Chief Land Registrar

2nd Defendant

National Land Commission

3rd Defendant

Director Of Land Adjudication and Settlement Scheme

4th Defendant

Director of Survey

5th Defendant

Ruling

1. This matter came up on 6/5/2024 for the inter partes hearing of the application dated 15/04/2024, following directions which this court issued on the application on 15/04/2021. The Applicants and the State Counsel appearing on behalf of all except the 3rd Respondent were present. The learned counsel for the Applicants appeared virtually but all her clients were present in open court where the learned state counsel too was.

2. When the court sought to confirm about service on the 3rd Respondent, though the Applicants indicated that they had served it, there was no demonstration by way of a received document, as alleged in the affidavit of service of the process server, that indeed the said Respondent was served. Thus, the court being dissatisfied with the service indicated as much.

3. The elephant in the room was the prayer by the Applicants for the court to issue temporary orders of injunction pending the hearing of the application on another date as sought by the Respondents who were already served. The Plaintiffs prayed for issuance of the orders for reasons that they were being harassed and threatened with eviction by the Defendants and the persons who were allocated the 917 plots alleged to have been resulted from the subdivision of land Reference Number 8026. They stated that the allottees were provincial administration officers, police officers, politicians and affluent members of the public.

4. The learned state counsel opposed the grant of interim orders on the grounds of non-service on the 3rd Respondent, and also that the alleged allottees of the 917 plots would be affected and condemned unheard yet they too had a right to property. He also argued that although the court had directed that the Respondents file responses within the timelines given, the suit land in issue having been registered under the Registration of Titles Act Chapter 280 of Laws of Kenya (now repealed) the documentation thereto was in the Lands office in Nairobi Ardhi House and the same were in various offices to where he had dispatched the Lands and Settlement Officer to go and get copies therefrom and instructions thereon. He prayed for one (1) week to have the same in terms of a replying affidavit. He prayed for more time to reply and also advised that the Plaintiffs were better off seeking Alternative Dispute Resolution over the matter since they were entitled to settlement in the same manner as the alleged allottees. Lastly, he argued that there was no demonstration of a threat to the occupancy of the suit land as alleged against the Defendants.

5. Having heard the oral arguments of the parties, and considering the fact that the law requires that parties are given a hearing before decisions, adverse or otherwise, are made against them, or in their favour, it is my considered view that, as indicated earlier on 15/04/2024, the application is not urgent. Secondly, the application having not been served on the 3rd Defendant, and the interim orders sought would prejudice the party who has not been served, and given that there are as alleged in the pleadings about 917 beneficiaries who have not been included in the application and are likely to be affect by the order of this court, a grant of the interim order of injunction would be prejudicial to them and have untold ramifications. It is in the interest of justice that the parties likely to be affected by the orders contested herein be served first and they be given a hearing too. I thus decline to grant a temporary injunction at this ex parte state.

6. I direct that the National Land Commission be served with the pleadings and application. The plaintiffs are to identify the 3rd Parties whom they allege have been allocated the plots numbering 917 in Chepchoina Phase III Scheme and also serve them upon applying to enjoin them in this matter, and the court granting their application.

7. The Respondents are given 21 days to file responses and serve. the Applicants too are given 14 days from today to apply to enjoin as Defendants or Interested Parties and individuals likely to be affected by the orders of this court in this matter.

8. The application shall be heard virtually on 05/06/2024 when the court may give further directions on joinder of other parties, and any other appropriate order.

9. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED AT KITALE VIRTUALLY VIA TEAMS PLATFORM THIS 7TH DAY OF MAY, 2024. HON. DR. IUR FRED NYAGAKAJUDGE, ELC, KITALEIn the presence of:1. Langat holding brief Jeruto for Plaintiffs2. Odongo for the Defendants3. Obino holding brief for Akello for 3rd Defendant